Citation NR: 9634884
Decision Date: 12/11/96 Archive Date: 12/19/96
DOCKET NO. 95-19 405 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
1. Whether new and material evidence has been submitted to
reopen the veteran’s claim for entitlement to service
connection for residuals of a cerebrovascular accident (CVA),
and if so, whether the reopened claim should be granted.
2. Entitlement to service connection for multiple sclerosis.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
Christopher J. Gearin, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1957 to July
1959. His records also indicate periods of active duty for
training with the United States Army Reserve, including
beginning in July 1989.
This matter comes before the Board of Veterans' Appeals
(Board) from a decision by the Department of Veterans Affairs
(VA) Regional Office (RO) in Detroit, Michigan.
Entitlement to service connection for a CVA was denied by a
rating decision dated in July 1990; the veteran was notified
of the decision later in July 1990 and he did not timely
appeal. The issue of entitlement to service connection for
multiple sclerosis will be addressed in the remand portion of
this action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he incurred a stroke while on
active duty for training in July 1989 and that this stroke
was the first manifestation of a later diagnosed multiple
sclerosis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has submitted new
and material evidence to reopen his claim for service
connection for residuals of a CVA.
FINDING OF FACT
The evidence received since the July 1990 rating decision
denied service connection for a CVA includes evidence which
is not cumulative or duplicative of evidence previously of
record and is sufficiently relevant and probative to
establish a reasonable possibility of a different outcome.
CONCLUSION OF LAW
The veteran has submitted new and material evidence to reopen
his claim for service connection for residuals of a CVA.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
A July 1990 rating decision denied entitlement to service
connection for a CVA; the veteran was notified of this action
and he did not timely appeal. Once a claim has been denied
by the RO, and is not timely appealed, the claim will not be
reopened unless new and material evidence is submitted in
support thereof. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
To be "new and material," the evidence must be more than
merely cumulative; there must be a reasonable possibility
that the new evidence, when viewed in the context of all of
the evidence, would change the outcome of the prior decision.
Colvin v. Derwinski, 1 Vet.App. 171 (1991).
Evidence received since the July 1990 denial includes a
revised United States Army Physical Disability Agency
(USAPDA) Physical Evaluation Board (PEB) report, dated in
November 1993, in which it is concluded that the veteran
probably has multiple sclerosis with the original symptom of
a right CVA, which was the proximate result of performing
duty.
The Board finds that the above noted evidence is new and
material and that, therefore, the veteran's claim for service
connection for residuals of a CVA is reopened. 38 U.S.C.A.
§ 5108; 38 C.F.R. § 3.156(a). Once a claim is reopened, it
must be evaluated on the basis of all of the evidence of
record, both new and old. Manio v. Derwinski, 1 Vet.App. 140
(1991).
ORDER
Because new and material evidence has been submitted, the
reopening of the veteran's claim for service connection for
residuals of a CVA is granted.
REMAND
Although there is evidence on file that the veteran may have
multiple sclerosis with a July 1989 stroke as an early
manifestation, the Board notes that there is very little
medical evidence related to the veteran’s disabilities on
file, there is no follow-up medical evidence that the veteran
definitely has multiple sclerosis, and there is no recent
medical evidence of the veteran’s physical condition.
Moreover, not all of the evidence used by the PEB to make its
decision in November 1993 appears to be on file.
Additionally, no records from Dr. Leroy Pambid, the veteran’s
treating physician noted in his March 1990 compensation
application, are on file.
In light of the above, the Board finds that additional
development is required prior to final determination of the
related issues in this case. Accordingly, the case is
REMANDED to the RO for the following actions:
1. The veteran should be requested to
provide the names, addresses and
approximate dates of treatment for any
health care providers, including Dr.
Pambid and the VA, who may possess
additional records pertinent to his
claims, such as treatment for residuals
of a CVA and/or for multiple sclerosis.
After obtaining any necessary consent
forms for the release of the veteran's
private medical records, the RO should
obtain, and associate with the file, all
records noted by the veteran that are not
currently on file.
2. The RO should obtain, and associate
with the claims file, all records used by
the USAPDA in its November 1993 PEB
determination and not currently on file.
3. After the above, the veteran should
be afforded a VA examination by a board
certified neurologist, if available, to
determine if the veteran currently has
multiple sclerosis, and, if so, the
relatioship between the multiple
sclerosis and the veteran’s active duty
for training in July 1989. The claims
files must be made available to the
examiner for review prior to the
examination. All necessary tests and
studies should be conducted, and all
findings should be reported in detail.
After review of the entire record, the
examiner should provide opinions on the
following: when multiple sclerosis, if
found, was first manifested; whether, if
it preexisted the veteran’s period of
active duty for training in July 1989, it
is at least as likely as not that the
disability increased in severity during
his July 1989 active duty for training;
and, if it did increase in severity
during active duty for training in July
1989, whether it is as at least as likely
as not that the increase in severity was
beyond normal progression. A complete
rationale should be provided for all
opinions expressed.
4. Thereafter, the RO should review the
claims file and ensure that all
developmental actions, including the
medical examination and requested
opinions, have been conducted and
completed in full. The RO should then
undertake any other indicated
development, to include an appropriate
examination and medical opinion by a
specialist if it is determined that the
veteran does not have multiple sclerosis
and that his July 1989 stroke was due to
another cause, and should adjudicate the
reopened claim for service connection for
residuals of a CVA on a de novo basis and
should readjudicate the veteran’s related
claim for service connection for multiple
sclerosis.
5. If the benefits sought on appeal are
not granted to the appellant’s
satisfaction, the RO should issue a
supplemental statement of the case and
should then provide the veteran and his
representative with an appropriate
opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. By
this REMAND, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is otherwise notified by the RO.
JAMES W. LOEB
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to the issue addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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